This blog comments on Canadian (and occasionally comparative) national security law to update my National Security Law textbook and now also my 2015 book, False Security: The Radicalization of Anti-terrorism, co-authored with Kent Roach.

Please also see www.antiterrorlaw.ca for Bill C-51-related analyses by Craig Forcese and Kent Roach.

For narrated lectures on various topics in national security law, please visit my 2017 "national security nutshell" series, available through iTunes.

Things just got way more complicated in the world of Canadian security and intelligence. And they were already complicated.

The Predictable Political Priorities

After last night’s US election results, Canada will be enormously preoccupied with maintaining trade access to the United States market, currently governed by a NAFTA much maligned by Donald Trump. A reversion to simple WTO rules (assuming the WTO itself survives) would sucker-punch the Canadian economy, as I understand the economic analyses. And so preserving the trade relationship and a seamless border will likely be the consuming foreign policy objective of the Canadian government.

As after 9/11, preserving trade may mean talking-up security. This is especially true given that the consequences of a terror incident originating in Canada and directed at the US have gone from disastrous to probably something closer to existential.

For these reasons, and more traditional reasons relating to our dependency on the much larger US security and intelligence community for shared intelligence, Canada will be even more keen than usual to show no daylight between us and the United States on security.

Trumpian National Security

And so a huge question is “what will a Trump security paradigm look like”. So far, the answer from the campaign is a mix of incoherent and scary. If a Trump administration returns to torture as part of the anti-terror toolkit (and, to take him at his word, goes well beyond the sort of practices at issue in the Bush period) and is inclined to the sort of unequivocal war crimes mooted as desirable policy, Canada will need to distance itself even as it shows no daylight. That is not an easy goal to achieve. Take information sharing: will Canada now find itself needing to apply the 2011 ministerial directives (on sharing of information that might come or induce torture) to every information exchange with US services? That would suddenly impose a lot of stickiness in a system that depends on being seamless.

So the next question is: how likely is a Trump administration to do the things Trump said he thinks would be good things to do? The soothing, technocratic answer is: the US intelligence and defence community would resist such departures from law and ethics, having learned their hard lesson from the post 9/11 years. See the discussion here. The less soothing answer for those of us who would never have predicted what happened after 9/11 is that the present day “imperial” presidency can bend gravity appreciably, especially if Trump appointees share his dispositions. In other words, a president with Louis XIV self-regard (although no equivalent savoir-faire) is capable of much mischief, especially if surrounded by sycophants much less able than Cardinal Mazarin. See the utter contortion the Bush administration (possessed of more worldliness on paper than the feared incoming crowd) made of the US intelligence community, in the lead-up to the Iraq War.

All of which is to say that I am not persuaded that bureaucratic resistance will suffice, especially with all three branches of government controlled by the Republicans (and that party tilting to Tea Party and now Trumpian world views).

But even if the United States does not backslide into abusive practices, it seems all but certain that the next administration will not be a government of law by lawyers. If Charlie Savage’s excellent book on security in the Obama years shows anything, it shows the degree to which the arbitrary and unpersuasively-lawyered Bush administration practices were replaced by an intensively legalized model. Whatever your doubts about the content of those legal views, it at least established a decisional rigour, relative to what went before.

I would not expect that rigour to survive a Trump administration. Rigour is clearly not part of the man’s personality, and the rule of law is equally clearly an arcane concept to him. I fully expect a seat-of-the-pants, arbitrary approach.

Knock-On Effects in Canada

That then raises the question: what happens to our security and intelligence relations with our chief ally. I leave it others to discuss the implications for things military and NATO. On that point, I will simply say that I suspect NATO will be tested. Bilateral military relations will be strained, although perhaps this is the easier issue. In truth, I have confidence in the uniformed military because of its tradition of laws of war compliance. Yes, it is not a perfect record (Somalia) and horrible new legal issues arise (the transfer of Afghan detainees). But I cannot imagine a Canadian officer giving or obeying a command to commit an outright war crime, as part of an allied operation or otherwise. The rules are clear here: that is an unlawful order and is not to be obeyed.

I am more concerned about the Canadian security and intelligence community. Here, secrecy is more acute, operations more porous, and the legal rules more pliable. And we have a tradition, post-9/11, of very doubtful activity tied to the allied relationship: The CSIS rendering of Mr Jabarah illegally and unconstitutionally in 2002. The use of information procured by the United States through torture in Canada immigration security certificate matters. The conduct of CSIS and RCMP in the maltreatment of Messieurs Arar, Almalki, El-Maati and Nureddin. The CSIS interrogation of Omar Khadr at Guantanamo Bay.

And of course, we are not alone among Five Eyes in having sacrificed some of our values post 9/11. The British, for instance, are still trying to unpick the contours of their conduct in the Intelligence and Security Committee’s current, new study on rendition. And before that, we had the Chilcott Report on intelligence and the Iraq War.

I am very worried, in other words, about the security services being bent by the gravitational pull of the US alliance relationship in an unpalatable direction. But the difference between post-9/11 and now: because of bill C-51, the Canadian services have an untested and poorly-bounded new host of powers at their disposal, for them to deploy as they are swept up in the new culture emanating from the United States. Put another way, this could get bad.

The question then becomes: what do we do about this? And here, I will say this: there is now, more than ever, an urgency to getting our house in order. Add the rigour that C-51 lacked so that our services don’t cruise to its outer limits, with all the predictable deleterious impacts. Perhaps even give serious thought to an enhanced Canadian foreign intelligence capacity – to reduce our dependence on the allied relationship (and potentially our value to it). And massively invest in our underpowered review and accountability system.

This is no longer business as usual, and we risk unpleasant surprises if we treat it as so.

This is the final post in a series of blog entries on Noël J’s recent Federal Court judgment on CSIS’s retention of metadata from its warranted threat investigations. In my first entry, I tried to explain what this case is about. In my second, I raised concerns about how we manage legal doubt in the security and intelligence community.

In this final blog entry, I want to focus on two political/policy dimensions: First, the relationship between CSIS and its accountability structure; second, the knock-on implications of reform generally in the national security area. There is definitely some editorializing in this piece, but heck: it is my blog.

CSIS and Its Overseers

CSIS is generally law-abiding. “Generally” means that is has acted improperly at times. The CSIS Metadata case is an example. The misconduct in other instances can be even more serious. The Air India bombing matter was its sin at birth. The Grant Bristow affair was quite the saga. CSIS should not have rendered Mr Jabarah illegally and unconstitutionally in 2002. The immigration security certificate matters were/are a mess. The agency bears at least partial responsibility for the foreign maltreatment of Messieurs Arar, Almalki, El-Maati and Nureddin. The unconstitutional extortion (because that is what it was) of Mr Mejid was inexplicable. The interrogation of Omar Khadr at Guantanamo Bay was a serious error of judgment. The Federal Court’s finding of CSIS complicity (the Court’s own word) in Mr Abdelrazik’s detention in Sudan was distressing.

And CSIS now also has a pattern of underwhelming adherence to its duty of candour in relation to courts, its review body (the Security and Intelligence Review Committee) and the minister of public safety:

Concerns about notification to the minister (including this past year).

And I suppose there are other examples, perhaps less well documented.

But to be clear, I do not view these infractions singularly or collectively to mean that CSIS is “rogue”. I need not imagine mala fides to be concerned. I am sure those inside the agency would tell me that there is a backstory to all of these instances. And so, I shall apply Occam’s Razor: CSIS makes mistakes, like any bureaucracy. But its mistakes tend to be quite consequential to individuals and the rule of law.

And so the question then is: what to do about it?

Less Aggressive Legal Positions in CSIS

Let’s face it, the statutory framework governing national security law needs a serious renovation, especially in areas affected by technology. So come back to Parliament and legislate, don’t pound the round peg of existing law into the square hole of new operational needs. When you do that, and lose, then you get hit with a jab and an uppercut: a finding of unlawfulness, usually on some sensitive civil liberties issue; and, a serious rule of law/running amok concern. You manage to ally a civil liberties issue (where the issues are often complex) with the rule of law issue (where the issues are pretty darn straight-forward).

I do not understand why CSIS would ever risk a negative duty of candour finding. It poisons the well – and that well happens to be the place where you need to go to get warrants.

Build Up the C-22 Committee of Parliamentarians While Also Fixing Expert Review

Well, enhanced oversight/review is in order. I have argued elsewhere that the proposed bill C-22 committee of parliamentarians is an important innovation, but requires enhancement to relax the strictures on the committee’s ability to see secret information.

Kent Roach and I have also argued that no committee of parliamentarians can ever hope to fulfill fully the detailed compliance function of the existing expert review bodies. And those review bodies must be rebuilt so that either a single body or (less ideally) multiple bodies have all-of-government security review jurisdiction and can cooperate seamlessly in performing their accountability functions. Abandoning expert review because of the advent of a committee of parliamentarians would be like tearing your seatbelt out of your car because now you have an airbag: they serve different functions, and besides a little redundancy is a good thing when trying to make potentially dangerous things safe.

And also, low hanging fruit: clean up SIRC’s funding so that it doesn’t lurch annually through periods fiscal doubt.

Build Formal Gateways between Review Bodies and the Federal Court

And in the wake of the Federal Court’s CSIS Metadata judgment, it seems that we need to fix the “broken telephone” between the review bodies and the courts. In two instances now – Re X and CSIS Metadata – the Court has been alerted to CSIS conduct, not directly, but very indirectly and obliquely by comments in SIRC’s public report. In CSIS Metadata, the Court used the word “manipulate” to characterize the risk that CSIS can leverage the distant relationship between the court and SIRC and serve as a broken telephone between the two.

And so a clear reform would include new statutory language allowing direct reporting by SIRC to the Federal Court on SIRC’s audits of CSIS warrants. Personally, I think the Court could impose such reporting requirements as a condition on the warrant (perhaps as simple as an obligation of CSIS to trigger a CSIS Act s.54 ministerial report and then a commitment to share it with the court). But Justice lawyers would probably throw red flags all over the field. So since fixing expert review means getting into the legislation anyway, better to put this all on sound statutory footing.

The Big “P” Politics

I’ll end with a slight broadening of the lens and, with trepidation, stray into the politics of this moment in Canadian national security history. Last Thursday’s decision, of course, shoves the pendulum in the reform direction, until the next time something goes boom. But of course, this back and forth swing is silly: there are real issues, and the issues are real regardless of where the pendulum is on its arc. We need a clear-eyed political gaze – and a lot of hard work.

For all those who think this is easy, and that a government further left or further right would wave a magic wand and things would be different, well, I don’t believe in magic wands. The magic wears off pretty quickly, and the deeper reform needs remain (see bill C-51, filed under category: “dark arts”). So let’s talk some more about concrete solutions, and not find in every “gotcha” moment (or every terrorist incident) proof for our predispositions.

This is the second of a series of blog entries on Noël J’s recent Federal Court judgment on CSIS’s retention of metadata from its warranted threat investigations. In my first entry, I tried to explain what this case is about.

In this blog entry, I begin to explore its implications, as I see them. First up: what a tangled web our legal system has weaved.

Secret Laws

Readers of this blog will know that I have developed an allergy to a commonplace practice in Canadian national security law: secret law. As I have noted before, Justice Canada legal opinions construing the scope of vague, open-textured statutory powers have the de facto effect of legislating the practical reach of those powers.

These opinions are clothed in solicitor-client privilege -- with the end effect of allowing a tool permitting frank advice between lawyer and client to be used to deny the public access to a true understanding of how the government interprets its legal powers. That may happen also in other areas, but in this one, the Justice Canada legal advice often is the last say: the covert nature of national security activities means that no one may be aware of how these powers are being used, and in a position to adjudicate the true scope of the law in front of an impartial magistrate.

In the hot-house of internal government deliberations, legal positions that might not withstand a thorough vetting become sacrosanct. And subsequent construals of powers build on earlier, undisclosed legal positions, producing outcomes that are very difficult to understand.

Examples I have encountered in my wanderings include:

a conclusion that the actual physical amalgamation of information does not amount to collection in a legal sense (CSIS; and possibly also CSE) (either a variation of the issue in play in the Federal Court case, or the very issue at stake – I don’t know);

a conclusion that CSIS’s new Bill C-51 threat reduction powers, done in violation of the Charter, can be constitutional if done pursuant to Federal Court warrant;

a conclusion (or at least implication) that somehow, and despite its (admittedly tortured) wording, the new bill C-51 Security of Canada Information Sharing Act is lawful authority effectively trumping the Privacy Act;

a conclusion that the exception to the definition of “undermining the security of Canada” in that same Act does not exclude violent protest, advocacy or dissent (a reasonable policy position, but the “violence” qualifier is not in the Act);

a conclusion that narrows the textual reading of the bill C-51 “advocacy or promotion of terrorism offences in general” (again, a welcome policy position, but not the way the offence reads).

These are all conclusions that are difficult to view as guided by the law Parliament has enacted.

The CSIS Metadata Case

Enter the CSIS metadata case. As described in my prior post, this case turns on whether retaining “associated data” (that is, non-threat related information) collected in warranted intercepts of communications by targets was lawful. The Federal Court concluded it was not. And it reasoning on this point is awfully compelling.

Less compelling is the argument offered by the Department of Justice in defending this practice. And these arguments have knock on implications if they govern the legal advice given in other contexts.

Argument 1: The statutory limitations on CSIS’s intelligence gathering in section 12 are relieved by a Federal Court warrant.

That is, once a Federal Court warrant issues, then Parliament’s constraints on CSIS’s section 12 mandate do not matter any more.

Now, as someone who teaches public and constitutional law, and defends basic constitutional norms of parliamentary supremacy, and contests the delusion that (except in rare instances inapplicable here) the executive has powers beyond those granted by Parliament, this argument struck me as astonishing. Here, the Justice Department is arguing that, in a secret hearing not subject to appeal in which only it is represented, it may negotiate a warrant with a court having the effect of superseding Parliament’s instructions on the powers CSIS is to have.

Let’s extend the Justice Department’s argument to the powers CSIS has after Bill C-51: it may do anything to reduce broadly defined “threats to the security of Canada” under section 12.1, so long as proportionate to the threat. Under section 12.2, it must not, however, engage in bodily harm, violate sexual integrity or obstruct justice. In other words, Parliament sets an out limit (albeit a ridiculously undemanding one that we believe needs to be made more robust).

But, under the Justice Department legal reasoning, if CSIS goes to Federal Court and obtains a warrant (as it may do so under s.21.1), these limits could be superseded by the warrant. And so, under the Justice Department logic, the Federal Court could authorize CSIS to, say, engage in targeted killing (remember, the C-51 changes also say that CSIS may, with Federal Court warrant, violate the Charter).

I have yet to meet the Federal Court judge that would authorize such a thing. But that is not my point. My point is that under the Justice Department logic, the basic constraints on CSIS’s powers legislated by Parliament in Bill C-51 can be negotiated out of existence in a secret, one-sided court proceeding, with no appeal.

Fortunately, Justice Noël rejects this Justice Department argument. But it is a bit terrifying it was ever made.

Argument 2: Metadata and the privacy issue.

In a second argument, the Justice Department seemed to advance the view that metadata do not trigger privacy concerns under the Charter at the collection stage. Instead, as I follow the discussion, that threshold is crossed when they are amalgamated and searched.

The court did not resolve this matter, it seems to me. But it is another distressing position with ramifications across government (including in relation to the infamous CSE incidental collection of Canadian metadata in its foreign intelligence and information technology security functions).

If accepted, this argument allows the accrual of vast pools of metadata, undisciplined by Charter collection rules. Under Bill C-51’s Security of Canada Information Sharing Act, that information could then start sloshing about government. At some point, the amalgamation and analysis of it would cross the Charter threshold, even according to the Justice argument. But what happens then? Are we to expect that government departments will come to Federal Court proactively seeking a warrant as they run algorithms through these databases? Absent legislated structures, I don’t see this happening.

So, again, this is another unhelpful legal theory.

Argument 3: CSIS and its lawyers didn’t need to tell the Federal Court about the metadata retention.

And now we get to the fireworks in this case: the duty of candour issue. I shall do a separate blog entry on this issue in particular. But among the other astonishing issues: the government lawyers apparently took the view that they did not need to tell the court how data collected under court warrant was being used, because the court did not have supervisory authority. This is a gobsmacking position, which basically confirms experience with other cases (like Re X): once the warrant walks out the door, the government does as it wills with it. It is a legal position that court itself discards with some energy: the government legal view reflected a “worrisome lack of understanding”.

And so I can only expect at this point that every single Federal Court warrant will have a “return and report” clause affixed to them. And the Federal Court will now move in the direction of the US FISA court in terms of auditing performance.

Which is fine, as far as it goes. But what about all the other doubtful legal positions that never get in front of court – and they are likely legion.

Well, one of the most important aspects of the national security and intelligence committee of parliamentarians anticipated by C-22 is that they will have access to information that is protected by solicitor-client privilege. If I was in charge, the first thing I’d do: an audit of national security legal opinions, done with the assistance of a small bevy of special advocates.